Kent Greenawalt is a former law clerk to Supreme Court Justice John M Harlan, a former Deputy US Solicitor General, and Professor of Law at Columbia University's School of Law. He is an expert in the field of constitutional law and jurisprudence, with an emphasis on issues of church and state.

Professor Greenawalt's book is a good primer in the often arcane jurisprudence surrounding the Establishment Clause of the United States Constitution and its application to issues of religion in public education. About a quarter of the text is devoted to the questions that arise out of the teaching of natural science, specifically focusing on the area of evolutionary theory, "creation science" and "intelligent design" ("ID"). It should be noted that much of this material can be found in Greenawalt's paper "Evolution, creationism, and intelligent design" delivered at the Colloquium on Constitutional and Legal Theory in March 2003 (available on-line in PDF format at ).

One good reason for reading this book is that recent positions taken by advocates of ID, including the Discovery Institute, appear aimed at meeting some of the criteria for passing constitutional muster that Greenawalt posits. But any teacher or administrator in the public school system will find the book a most useful resource for navigating such thorny issues as what sort of holiday celebrations can take place in public schools, sex education, student religious clubs, prayers at school events, and the like. Naturally enough, this review will focus on the part of the book dealing with the teaching of science.

The book is written in an open style, without much in the way of legal jargon, but is heavily footnoted (67 pages' worth) for those who want to delve deeper. It should be noted that books of this sort have been influential on US courts in the past, especially in areas fraught with more public passion than solid case law, as is the case with the relationship of ID to science and religion.

Greenawalt starts with a brief history of public schools in the US, noting that, up until quite recently, it was common practice to require students to participate in religious devotions that amounted to a kind of nonsectarian Protestantism. Greenawalt then summarizes the major Supreme Court decisions during the last half of the 20th century that, at least officially, ended such practices.

Next, Greenawalt lays out the various theoretical purposes for having a tax-supported educational system in order to set the stage for differentiating valid secular purposes from impermissible religious ones. He identifies the major aims of public education as: vocational training; enhancement of the capacity to make life choices; enrichment of lives through knowledge of literature, science, history and sports; training to participate in civic life and the instillation of socially desirable morals and ideals, such as honesty and respect for others.

Greenawalt quickly points out that there is no simple one-to-one relationship between any one of these purposes and any particular area of study. Great literature, for example, not only enriches the aesthetic sense but also can illuminate political life, instruct in social morals and even contribute to career choices. These necessarily overlapping domains result in what Greenawalt calls "spillover effects," where an area of study undertaken for otherwise acceptable purposes can impact a particular set of religious beliefs. Spillover effects are the source of much of the conflict that occurs in the realm of religion and public education.

An early question to address is: What are religious propositions? Greenawalt generalizes suggests that claims about the existence, nature and actions of God; life after death and the ultimate significance of physical reality and human life are inherently religious. Agnostic and atheist claims that address these areas, whether or not these beliefs are themselves "religions," are constitutionally impermissible, if taught as true, because they consist of answers to those same religious questions. Similarly, practices such as church attendance, prayer, and sacraments cannot be held up as desirable or mandatory, but neither can they be held up as undesirable or forbidden. Gray areas arise because religions typically include ideas about how people should live their lives. For example, many religions teach personal honesty, generosity towards others and parental love. Greenawalt would identify these as secondary religious propositions that flow from, but are not themselves dependent on, the primary religious perspectives. For example, a belief that the nature of God includes a desire that we care for each other does not debar schools from teaching that children need love from their parents, as that can be presented on a basis other than the nature of God. On the other hand, teaching that parents should love their children because the Bible tells them to would involve primary religious claims and is not allowed.

When Greenawalt turns to science education, he makes this initial point:

Although I have no expertness in evaluating the plausibility of scientific claims, my appraisals are nevertheless worth stating, both because almost anyone trying to figure out what is true overall must engage a field in which he is not expert and because many educational officials and virtually all judges who must discern if educational decisions are constitutional will lack special scientific competence. (p 101)

No matter how much we might wish otherwise, because of our constitutional framework and the patchwork system of US education that emphasizes the political role of state and local school boards, critical decisions about what constitutes valid educational goals are necessarily in the hands of people with little or no expertise in either education or the particular subjects to be taught. (Science education would be well served if all school board members, administrators and judges had anywhere near Greenawalt's grasp of the issues involved in the evolution/creationism dispute. If his notes are any guide, he has read widely in the literature of both sides. Besides referencing such well-known philosophers of science as Hume, Popper, Lakatos, and Kuhn, he discusses the works of philosophers particularly interested in the evolution/creationism debate, including Philip Kitcher's Abusing Science, Larry Laudan's "Science at the bar: Causes for concern" and Robert Pennock's Tower of Babel and Intelligent Design Creationism and its Critics. Among scientists, he is familiar with Kenneth Miller's Finding Darwin's God and numerous works by Stephen Jay Gould, Richard Dawkins, Niles Eldredge, and others. Nor does he neglect the creation science and ID side, citing works by Henry Morris, Jonathan Wells, Phillip Johnson, Alvin Plantinga, William Dembski, and Michael Behe.) Greenawalt admits that "it may seem that I give more credence to critics of dominant evolutionary theory than would the overwhelming majority of practicing scientists" (p 89), but goes on to point out that the primary issue in the law is not the scientific validity of the critique but whether including it in public education transgresses constitutional boundaries.

One point Greenawalt forcefully makes is that natural selection, and evolutionary theory in general, are important not only in the study of the development of species but also across the board in the biological sciences. Therefore, according to the standards within the discipline, evolutionary theory would undoubtedly be taught except for religious opposition. Any decision not to teach evolution or to teach that it is "only a theory" (as long as that implies that it is less well confirmed that than most scientific explanations) would be an implicit endorsement of religious views and violate the Establishment Clause.

After discussing the philosophy of science in some detail, he concludes that both creation science and ID are really about the limitations of science. He further concludes that claims that scientific theories may fail as explanations could be an appropriate subject in science courses. In short, he is of the opinion that at least some issues in the philosophy of science are appropriate to public school science courses. Greenawalt also points out that negative arguments do have a legitimate role in scientific discourse, but he acknowledges that the leap ID makes from arguments that selection fails to explain apparent design to the claim that such features are necessarily the result of an intelligent creator, is unwarranted.

As an "ideal" statement of what might be discussed about the limits of science, Greenawalt offers the following:

Modern science seeks to discover natural explanations for physical events. We cannot be certain that natural explanations will always suffice, but physics, chemistry, and biology have made amazing advances by assuming that they will. If we had powerful evidence that science could not conceivably explain some phenomena, this evidence of limits could be one small part of science courses; some people believe such evidence exists about evolutionary processes, but the uncertainties there are matched by those in other areas of science. In any event, it is too soon to conclude that any difficulties with evolutionary theory, even if they exist, cannot be rectified by scientific explanation. (p 114)

Coming to the nitty-gritty, Greenawalt has no great difficulty identifying "creation science" as a religious program. "[W]hat makes the theory religious is that religious premises explain why the practitioners reach the conclusions they do" and no attempt to edit out scriptural references and to substitute "abrupt appearance" for "divine creation" can disguise that (p 116).

ID is, however, less easy to locate within constitutional law. Greenawalt notes that just because a scientific explanation of phenomena happens to bear on the likely truth of a religious tenet does not make the explanation religious in nature and, hence, impermissible in public education. However, he goes on to make the important point that this is a two-way street. If an explanation lends support to a religious view, that alone does not bar it from being scientific or from being taught in public schools. After reviewing the Supreme Court cases of Epperson v Arkansas and Edwards v Aguillard, he concludes:

The dominant neo-Darwinian account has enough conundrums for text writers, science teachers, and boards of education to conclude that teachers could usefully discuss them and, further, suggest that whether the dominant theory, and particularly the pre-eminent place it accords natural selection, may require substantial revision or supplementation is an open question. I do not claim that scientific evidence supports this qualified presentation of neo-Darwinism better than an unqualified account, only that the choice is within the range of constitutionally permissible judgment — something judges have to assess by the balance of scientific opinion and their own sense of the strength of arguments. (p 124)

However, Greenawalt immediately goes on to say:

Were educators to go further and insist that intelligent design is probably a needed supplement to natural selection and other aspects of neo-Darwinism, or that intelligent design is the alternative to unvarnished neo-Darwinian theory, they would step over the constitutional line, because such judgments could now be made only on religious grounds. (p 124

That the proponents of ID may have taken Greenawalt's positions to heart in recent days should now be clear. In the case of the Dover, Pennsylvania, school district's attempt to present ID, the local school board — at least following the court challenge — has denied that it will curtail the teaching of evolution in any way and presents ID merely as one possible alternative to evolutionary theory (see RNCSE 2004 Sep/Oct; 24 [5]: 4–9).

Those interested in strong science education in US public schools may be disappointed that Greenawalt would open the door to the "teach the controversy" ploy. When implemented, these programs may well degenerate into spurious philosophical claims, selective quotations and arguments from incredulity, instead of sound science education. That does not mean that he is wrong about the constitutional permissibility of attempting them.

If there is one serious flaw in Greenawalt's analysis, it is that he makes no attempt to elucidate how any "conundrums" might properly be presented or whether it is even appropriate to address the real controversies in evolutionary theory in K–12 education. We are left in the dark as to whether any limitations exist on what can be claimed to constitute conundrums, how the courts could evaluate those limitations, if any, or what constitutional standards they could apply. Certainly, courts would be loath to micro-manage the science curricula of public schools but, as we all know, the devil is in the details.

Greenawalt is right enough when he says:

I have proposed a middle course somewhere between what evolutionists insist is the only sound scientific approach and what proponents of Genesis creation and intelligent design seek. This counsel of moderation may have little appeal for opposing camps who standardly accuse one another of dogmatism and dishonesty. (p 125)

The problem is that he has left us with no way to tell what his "middle course" might look like in practice.

[Originally posted on the talk.origins usenet group, 2005 May 28, and reprinted with permission.]